Karnataka High Court
Sri Balakrishna Rao S/O Kandoji Rao vs United India Insurance Company Limited on 7 September, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.1510/2009 (MV)
C/W
M.F.A.No.11976/2007 (MV)
IN M.F.A.No.1510/2009
BETWEEN:
SRI. BALAKSRISHNA RAO
S/O. KANDOJI RAO
MAJOR
R/O. OPP. TO OLD BUS STAND ROAD
DAVANAGERE. ... APPELLANT
(BY SRI. A. ANANDA SHETTY, ADVOCATE AND
SRI. N. RAJASHEKAR, ADVOCATE (THROUGH VC))
AND:
1. UNITED INDIA INSURANCE
COMPANY LIMITED
BY ITS MANAGER
PRAVASI MANDIRA STREET
DAVANAGERE
2. CHANDRAKALA @ CHANDRI
W/O. HANUMANTHU
AGED ABOUT 28 YEARS
3. LAVANYA
D/O. HANUMANTHU
AGED ABOUT 9 YEARS
2
4. GAGANA
D/O. HANUMANTHU
AGED ABOUT 7 YEARS
5. MEGHANA
D/O. HANUMANTHU
AGED ABOUT 5 YEARS
6. HANUMAIAH
S/O. RAMAIAH
AGED ABOUT 65 YEARS
7. THIMMAKKA
W/O. HANUMAIAH
AGED ABOUT 60 YEARS
RESPONDENTS No.2 TO 7 ARE
RESIDING AT No.113
2ND CROSS, JAI MARUTHI NAGAR
BENGALURU-96.
RESPONDENTS No.3 TO 5 ARE
MINORS REPRESENTED BY THEIR
MOTHER AND NATURAL GUARDIAN
RESPONDENT No.2. ... RESPONDENTS
(BY SRI. JWALA KUMAR, ADVOCATE FOR R1 (THROUGH VC)
SRI. K.R.RAMESH, ADVOCATE FOR R2 TO R7 (PHYSICAL
HEARING))
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.02.2007
PASSED IN MVC.NO.1023/2002 ON THE FILE OF PRINCIPAL
CIVIL JUDGE (SR. DN.) AND ADDITIONAL MACT, TUMKUR,
AWARDING A COMPENSATION OF RS.4,61,180/- LESS INTERIM
COMPENSATION WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL PAYMENT.
3
IN M.F.A.No.11976/2007
BETWEEN:
1. CHANDRAKALA @ CHANDRI
W/O. HANUMANTHU
AGED ABOUT 28 YEARS
2. LAVANYA
D/O. HANUMANTHU
AGED ABOUT 9 YEARS
3. GAGANA
D/O. HANUMANTHU
AGED ABOUT 7 YEARS
4. MEGHANA
D/O. HANUMANTHU
AGED ABOUT 5 YEARS
5. HANUMAIAH
S/O. RAMAIAH
AGED ABOUT 65 YEARS
6. THIMMAKKA
W/O. HANUMAIAH
AGED ABOUT 60 YEARS
APPELLANTS No.2 TO 4 ARE
MINORS REPRESENTED BY THEIR
MOTHER AND NATURAL GUARDIAN
APPELLANT No.1.
ALL ARE RESIDENTS OF No.113
2ND CROSS, JAI MARUTHI NAGAR
NANDINI LAYOUT
BENGALURU-96. ... APPELLANTS
(BY SRI. K.R. RAMESH, ADVOCATE (PHYSICAL HEARING))
4
AND:
1. SRI. BALAKSRISHNA RAO
S/O. KANDOJI RAO
MAJOR IN AGE
R/O. OPP. TO OLD BUS STAND ROAD
DAVANAGERE.
2. UNITED INDIA INSURANCE
COMPANY LIMITED
PRAVASI MANDIRA STREET
DAVANAGERE. ... RESPONDENTS
(BY SRI. H.B. NAGARAJ, ADVOCATE FOR R1
SRI. JWALA KUMAR, ADVOCATE FOR R2 (THROUGH VC))
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.02.2007
PASSED IN MVC.NO.1023/2002 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (SR. DN.) AND ADDITIONAL MACT, TUMKUR,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMNT OF COMPENSATION.
THESE M.F.As. COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Miscellaneous First Appeal No.1510/2009 is filed by the insured/owner questioning the liability fastened on the owner and the Miscellaneous First Appeal No.11976/2007 is filed by the claimants challenging the quantum of compensation awarded in the judgment and award dated 23.02.2007 passed in M.V.C.No.1023/2002 on the file of Principal Civil Judge (Sr.Dn.) 5 and Additional Motor Accident Claims Tribunal at Tumakuru ('the Tribunal' for short).
2. The parties are referred to as per their original rankings before the Tribunal in order to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that on 03.06.2002 at 6:40 a.m. Hanumanthu @ Hanumantharayappa was driving the matador bearing registration No.KA-05-7040 near Hawala of Turuvekere on Y.T.Road. An accident was taken place due to negligent driving of the bus bearing registration No.KA-17-A- 7574. Due to the said accident Hanumantharayappa sustained severe injuries and he was admitted to KIMS Hospital, Bengaluru. He succumbed to the injuries on 12.06.2002.
4. It is the case of the claimants before the Tribunal that they spent an amount of Rs.40,000/- towards treatment and the deceased was working as driver and earning Rs.5,000/- per month. In pursuance of the claim petition, second respondent - Insurance Company appeared and filed the written statement denying the averments made in the claim petition. It 6 is also contended that the accident was purely due to rash and negligent act on the part of the deceased himself. Respondent also took the specific defence that the bus was not having permit to ply the vehicle on Y.T. road near Hawala - Turuvekere Taluk and it is the violation of permit condition. Hence, the Insurance Company is not liable to pay the compensation.
5. On behalf of the claimants in order to substantiate their case, examined the witnesses as P.Ws.1 and 2 and got marked the documents at Exs.P.1 to 13. On behalf of the respondents examined a witness as R.W.1 and got marked the documents at Exs.R.1 to R.3 i.e., Authorisation letter, Permit and Copy of Insurance Policy.
6. The Tribunal, after considering the material on record awarded a compensation of Rs.4,61,180/- with 6% interest per annum from the date of petition till its payment. Regarding liability is concerned, fastened the liability on the owner. Hence, the owner has preferred MFA No.1510/2009. In the said appeal, it is contended the Tribunal has failed to consider that the vehicle is covered by a valid insurance policy on the date of the accident and covered by a valid Stage 7 Carriage Permit on the route Davanagere to Tiptur, just because the driver had to take a deviation to reach the destination on a deviated route, it cannot be held that the vehicle is not covered by a permit. The vehicle was used on a route where there were no public and held that defence available under Section 86 cannot be made use of by the Insurance Company. Hence, the Tribunal has committed an error in fastening the liability on the owner.
7. The claimants have also filed an appeal in MFA No.11976/2007. In this appeal, it is contended that the Tribunal has committed an error in fastening the liability on the owner and also committed an error in taking the income of the deceased as Rs.3,000/- per month. The Tribunal has awarded meager compensation and it requires interference of this Court for enhancement. The other ground urged is that with regard to fastening the liability on the Insured is erroneous and it requires interference and the liability has to be fastened on the Insurance Company.
8
8. Learned counsel appearing for the appellant in MFA No.1510/2009 would submit that the road was blocked and hence, there was a deviation and also he brought to the notice of this Court the Judgment reported in ILR 2018 KAR 1849 in the case of THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. v. SMT. JAYAMMA AND OTHERS. Referring to this Judgment, the learned counsel would submit that the burden lies on the Insurance Company to establish the violation of the permit.
9. Learned Counsel appearing for the Insurance Company would submit that the permit was taken to ply the bus in between Davanagere and Tiptur and the accident was taken place on Tiptur - Turuvekere road. The route is also different. R.W.1 is examined to prove the said facts. Learned counsel also submits that permit in terms of Ex.R3 to ply between 8 a.m. to 9 p.m. in the particular route and the vehicle was plied at 6:40 a.m. in Tiptur - Turuvekere road on 03.06.2002. Hence, there is a clear violation of the permit condition. Hence, it has to be ordered for pay and recovery.
9
10. Learned counsel appearing for the appellants in MFA No.11976/2007 would submit that the deceased was aged about 27 years and the claimants are wife, children and also the parents. In total, there are six claimants. The Tribunal ought to have deducted 1/5th instead of 1/3rd towards personal expenses. Learned counsel also would submit that Ex.P11 -License, shows that he was working as driver and also at the time of the accident, he was driving the matador and the same is a commercial vehicle. The Tribunal though awarded medical bills but not awarded any amount for the 'expenditure' since he was in the hospital for a period of 9 days. Learned Counsel also submits that the Tribunal did not consider the 'future prospects' and hence, it requires interference of this Court.
11. Having heard the arguments of the learned counsel for the appellants/owner and claimants and learned counsel for respondent No.2/Insurance Company, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in fastening the liability on the insured/owner as contended in MFA No.1510/2009?
10
(ii) Whether the Tribunal has committed an error
in not awarding the just and reasonable
compensation as contended in MFA
No.11976/2007?
(iii) What order?
Point No.(i):
12. The main contention of the appellant for the
insured/owner is that the Tribunal has committed an error in fastening the liability on the insured. It is contended that there was a permit and there was a road blockage and hence, the deviation has taken place. In order to substantiate the said contention, the insured did not choose to lead any evidence before the Tribunal and only the Insurance Company examined one witness as RW.1. On perusal of the petition averments, there is no dispute that the accident was taken place near Hawala of Turuvekere on Y.T.Road. The documents, which are marked as Ex.P2-FIR; Ex.P3-Charge Sheet and Ex.P4-Mahazar, disclose the place of accident, the same has not been disputed in the cross-examination of P.W.1 and also permit, which is marked as Ex.R3 discloses that the permit was given to ply the bus in between Davanagere and Tiptur. The accident was taken place in 11 between Tiptur and Turuvekere road. Hence, it is clear that there is a deviation in plying the bus and also learned counsel for the insured contend that the deviation was only due to blockage of road.
13. The learned counsel appearing for the Insured relied upon the Judgment in Smt. Jayamma's case (supra), no doubt in terms of the principles laid down in the Judgment, the insurer has to establish that the breach of policy is so fundamental that it ended the contract which has been entered into between the insurer and the insured. In other words, violation must be of such a nature that it is the primary cause of the accident and not otherwise. With this object, the Legislature has spelled out grounds on which the Insurance Company can avoid its liability. The defence provided to the Insurance Company is a statutory right. Further, it is observed that the Court cannot import or read any other grounds than what are spelled out in sub-Section (2) of Section 149 of the Act. It is also observed that, a breach only invites criminal penalty, as such, it is not so fundamental to say there is breach of policy condition. 12
14. Learned counsel appearing for the claimants also relied upon the Judgment of this Court reported in 2017 (1) Kar. L.R 251 in the case of Durugamma v. S.G. Naresh S/o. Govindappa and Others. The co-ordinate bench of this Court discussed with regard to Section 207 of the Motor Vehicles Act, 1988 ('the Act' for short); plying of the vehicle without permit and also with regard to violation of permit condition which are contemplated in Section 86 of the Act where the permit can be cancelled, penalty can be imposed under Section 192-A of the Act. Section 207(1) of the Act contemplates power to detain vehicles used without certificate of registration permit.
15. Having considered the material available on record and the principles laid down in the Judgments referred supra, no doubt, the burden shifts on the Insurance Company to prove that there was a deviation and admittedly, the place of accident is not in dispute and also the permit given is in respect of the route of Davanagere and Tiptur and an accident was taken place in between Tiptur and Turuvekere road and permit is also marked as Ex.R3. The claimants have also not disputed the permit. Instead of admitted the deviation. The owner also not 13 disputing the deviation and only contend that due to road blockage, the vehicle was plied in the said place. The principles laid down in Durugamma's case (supra), is very clear that it is only a deviation and the same is not a fundamental breach and no doubt in the case of NATIONAL INSURANCE CO. LTD. v. CHALLA BHARATHAMMA AND OTHERS reported in 2004 AIR SCW 5301, the Apex Court held that if no permit, it amounts to an infraction but in the case on hand, it is only a deviation. Hence, the very approach of the Tribunal is that the Insurance Company is not liable, is erroneous.
16. The learned counsel appearing for the Insurance company also do not dispute the fact, but he claims that this Court has to order for pay and recovery and I have already pointed out that in the case on hand, there is no fundamental breach and it is only a deviation and in view of the Judgment rendered in Durugamma's case (supra), this Court is of the opinion that the Tribunal has committed an error in fastening the liability on the Insured and the liability has to be fastened on the Insurance Company. Hence, I answer point No.1 as 'affirmitive'. 14
Point No.(ii):
17. With regard to awarding the just and reasonable compensation, it was the accident of the year 2002 and no doubt the claimants are the wife, children and parents. Totally, there are six claimants. When such being the case, the Tribunal ought to have deducted 1/5th and not 1/3rd towards personal expenses. Hence, there is an error apparent on the face of the record.
18. The other contention is that the Tribunal has taken the monthly income of the deceased as Rs.3,000/- and also it is not in dispute that at the time of accident, the deceased was working as driver and he was driving the matador. Ex.P11- driving license discloses that he was having a valid driving license. When such being the case, the Tribunal ought to have taken the monthly income as Rs.4,000/- instead of Rs.3,000/- as the job of driver is a skilled job.
19. Learned counsel for the claimants rightly submitted that no amount has been awarded on the head of 'expenditure incurred when the injured was unwell for a period of nine days'. Hence, I am of the opinion that it is appropriate to award an amount of Rs.10,000/- on the head of 'expenditure with regard 15 to transportation of body and other medical assistance provided at the time of treatment'.
20. The medical bills are considered by the Tribunal. Hence, I do not find any reasons to modify the same and the same is based on the medical bills produced before the Tribunal.
21. However, taking the monthly income of Rs.4,000/-, the age of the deceased as 27 years, the relevant multiplier is 17 and adding 40% of the income towards 'Future Prospects', it comes to Rs.5,600/- (4000x40/100). After deducting 1/5th towards personal expenses (5600x1/5=1120), the 'loss of dependency' would come to Rs.9,13,920/- (4480x12x17).
22. In view of the Judgment of the Apex Court reported in (2017) 16 Supreme Court Cases 680 in the case of NATIONAL INSURANCE COMPANY LIMITED V. PRANAY SETHI AND OTHERS, the claimants are entitled for compensation of Rs.70,000/- under the 'conventional heads'.
23. In the circumstances, the appellants/claimants are entitled to a compensation of Rs.10,17,100/- as against 16 Rs.4,61,180/- awarded by the Tribunal. Hence, I answer point No.(ii) as 'partly affirmative'.
24. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal filed by the insured/owner in MFA No.1510/2009 is allowed.
(ii) The impugned judgment and award of the
Tribunal dated 23.02.2007 passed in
M.V.C.No.1023/2002, is modified fastening the liability on the Insurance Company instead of the insured.
(iii) The appeal filed by the claimants in MFA No.11976/2007 is partly allowed.
(iv) The impugned judgment and award of the
Tribunal dated 23.02.2007 passed in
M.V.C.No.1023/2002, is modified awarding
compensation of Rs.10,17,100/- as against Rs.4,61,180/- with interest at the rate of 6% per annum from the date of petition till payment.17
(v) The respondent-Insurance Company is directed to pay the amount within eight weeks from the date of receipt of copy of this order.
(vi) The apportionment ratio as ordered by the Tribunal shall remain unaltered.
(vii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE cp*